Grandparents’ rights . . . not so grand
Nowadays grandparents can play a significant role in the family unit. They can provide invaluable support to many parents raising children. However, if a change in the family unit occurs it is usually the grandparents who lose out on contact with the children. One common example of when this occurs is after parents separate or divorce. In situations such as these there can be a great deal of confusion surrounding the question as to whether grandparents have a legal right to contact with their grandchildren.
It may come as a surprise to many people in Scotland that grandparents do not have automatic rights to contact with their grandchildren. The reason being that grandparents do not fall within the category of people who have automatic parental rights and responsibilities under the Children (Scotland) Act 1995 (the 1995 Act). Subsequently grandparents can experience great difficulties in relation to obtaining contact with their grandchildren.
However, under s11(2)(d) and 11(3) of the 1995 Act grandparents, or any person who does not have parental rights and responsibilities in respect of a child but who claims an interest, can apply to the court for an order granting them contact with the child.
When considering a request for such an order the court must have regard to the following: –
1. The welfare of the child concerned will be the court’s paramount consideration and the court shall not make such an order unless it considers it would be better for the child that the order be made than that none should be made at all;
2. The child shall be given an opportunity to express their views and the court shall have regard to those views. This principle applies as far as is practicable and the child’s age and maturity should be taken into account; and
3. The need to protect the child from actual or possible abuse.
It is important to consider the costs involved with raising a court action as the process can potentially be expensive. Financial help may be available through the Scottish Legal Aid Board but there are various financial tests which applicants must satisfy in order to qualify. If you do not qualify then the action would have to be privately funded. As well as being expensive, court action is a lengthy process and there is no guarantee of success.
However, court action should only be used as a last resort and the alternatives to court action should be exhausted first.
Initially parties should try and seek an agreement for contact arrangements between themselves. However, if this is not successful parties can opt to participate in voluntary mediation. Mediation is a process whereby the parties meet with a qualified specialist and work together to reach an amicable agreement.
Despite significant reform being introduced to family law over previous years, grandparents’ rights is an area which has not been addressed and unfortunately it does not appear as though there will be any changes to this particular area in the near future.
This blog post was written by Louise Scullion, LLB, Dip LP.View all →